Burden of Proof — Onus Probandi, On Whom It Lies, and Burden as to a Particular Fact (ss. 104–106) — BSA (Law of Evidence) Notes

Burden of Proof — Onus Probandi, On Whom It Lies, and Burden as to a Particular Fact (ss. 104–106)

In 1935 the House of Lords decided Woolmington vs Director of Public Prosecutions — a young man said his wife’s death was an accident while he was trying to win her back. The trial judge told the jury that he must prove the accident. That was wrong, said the Lords, and they wrote the most famous line in the law of proof: throughout the web of English criminal law one golden thread is always to be seen — that it is for the prosecution to prove the prisoner’s guilt. The burden never shifts to the accused. That single idea — who must prove? — is the whole of this topic.

Start with the everyday version. “Burden of proof” is just the rule that answers a simple question: if nobody led any evidence at all, who would lose? Whoever would lose is the person carrying the burden — so he had better bring evidence. The Latin name is onus probandi [the burden of proving].

But the phrase is used in the Adhiniyam to mean three different ideas, and the marks are in keeping them apart. Two of them are covered by ss. 104–106; the special and exceptional burdens are the next topic.

A. The legal (persuasive) burden — s. 104

Section 104 states the general rule: whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. In one line: he who asserts must prove. When a person is bound to prove a fact, the burden of proof on that fact lies on him.

This is the legal or persuasive burden. Three features make it exam-worthy:

It is fixed at the start of the case by the pleadings (in a civil suit) and by the substantive law (in a criminal trial). It is decided the moment the case is framed, before any evidence is led.
It never shifts. In a criminal trial it sits on the prosecution from first to last.
It must be discharged to the required standard — beyond reasonable doubt in a criminal case, on a preponderance of probabilities in a civil case.

B. On whom it lies — s. 105

Section 105 tells you exactly where that burden sits: the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. This is the practical test. Imagine both sides simply staying silent — the party who would then lose is the one who carries the burden and must therefore lead evidence.

So if A sues B for a debt and neither leads any evidence, A loses (he has proved no debt). The burden of proof is therefore on A, the plaintiff who asserts the debt.

C. Burden as to a particular fact — the onus, s. 106

Section 106 shifts the focus from the whole case to a single fact: the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

This is the evidential burden, often called the onus to distinguish it from the legal burden. Unlike the legal burden, this one moves back and forth during the trial as evidence accumulates. The plaintiff proves the debt; the onus of proving payment then shifts to the defendant who asserts he paid; if he proves a receipt, the onus of showing the receipt is forged shifts back. The legal burden (who loses if all is silent) stays put; the evidential onus (who must move next) travels.

🧩 WORKED EXAMPLE — burden that stays vs onus that shifts

Facts. A sues B on a bond for Rs. 10,000. B admits he signed the bond but says A obtained it by fraud. A denies the fraud. If neither side led any evidence, who wins — and who must prove the fraud?

Rule. The legal burden lies on the party who would fail if no evidence were given (s. 105); the burden of proving a particular fact lies on the party who asserts it (s. 106).

Apply. B has admitted execution of the bond, so the bond stands proved without A leading anything. If both stay silent, B loses — so the legal burden of the fraud issue is on B, who raised it. Fraud is a particular fact B asserts; s. 106 puts the onus of proving it squarely on B.

Conclusion. A need not disprove fraud. B must prove it. If B cannot, A succeeds on the bond.

Decoy. The tempting answer is “A must prove his own case, so A proves everything.” But once execution is admitted, the only live fact is the fraud — and that is B’s assertion, so B carries it.

🔑 The general/legal burden and the onus of a particular fact are different animals. The general burden is fixed by the pleadings and never shifts; the onus under s. 106 shifts with the state of the evidence. An examiner who writes “the burden shifted to the defendant” is always talking about the s. 106 onus, never the s. 104 legal burden.

Section 104, BSA 2023: “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

Section 105, BSA 2023: “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

Section 106, BSA 2023: “The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

In Simple Terms: He who asserts must prove (s. 104). The burden sits on whoever would lose if the courtroom fell silent (s. 105). And for any single disputed fact, whoever wants the court to believe that fact must prove it (s. 106) — a burden that keeps moving as the evidence builds.

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    ROOT --> B["On whom it lies (s. 105)<br/>the party who would fail<br/>if no evidence were given"]:::leaf
    ROOT --> C["Onus of a particular fact (s. 106)<br/>whoever wants it believed<br/>SHIFTS with the evidence"]:::diamond
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Case Laws

Woolmington vs Director of Public Prosecutions (1935) — the “golden thread”: in a criminal trial the prosecution must prove guilt beyond reasonable doubt and the burden never shifts to the accused.
Jarnail Singh vs State of Punjab (1996) — the legal burden on the prosecution is constant, while the onus of proof (the evidential burden) shifts as the evidence develops.
Anil Rishi vs Gurbaksh Singh (2006) — distinguished the burden of proof (fixed, s. 104) from the onus of proof (shifting, s. 106); where fraud is pleaded, the party alleging it must prove it.
Triro vs Dev Raj (1993) — under s. 105 the burden lies on the party who would fail if no evidence were led on either side.

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